Law360, New York (August 18, 2015, 4:52 PM ET) — The U.S. government on Tuesday dropped its case against a South Korean businessman it accused of attempting to obtain airplane and missile guidance systems for China and Iran, stating that it couldn’t pursue its claims without computer evidence that a federal judge ruled was off-limits.
In a motion to dismiss the indictment against Jae Shik Kim, Acting U.S. Attorney Vincent H. Cohen Jr. said that the government has chosen not to appeal U.S. District Judge Amy Berman Jackson’s order barring the use of data that the Department of Homeland Security found on Kim’s computer.
David Deitch of Harris O’Brien St. Laurent & Chaudhry LLP represents Kim and said his client is happy to have the case behind him, and confirmed to Law360 that Judge Berman Jackson has granted the government’s motion.
“Mr. Kim is very pleased that the ordeal that started with his arrest during a business trip to the United States is finally over,” Deitch said in a statement. “He looks forward to rebuilding his business, which has suffered while this case was pending, and even moreso, he looks forward to attending to his wife and his young children, who missed him terribly while he was kept here in the United States defending against these charges.”
After his laptop was seized at Los Angeles International Airport in December 2012, Kim was indicted along with his company, Karham Eng. Corp., for doing business with Iran, arms trafficking, violations of the Arms Export Control Act and other charges.
The indictment said Kim and others formed a plot in late 2007 to ship accelerometers manufactured by defense contractor Honeywell International Inc. to South Korea, where they would then be transported to Kim’s co-conspirators in China and Iran.
But the U.S. suffered what proved to be a fatal setback for its case in May, when Judge Berman Jackson found that DHS violated the Fourth Amendment by harvesting information from Kim’s computer.
The judge said the government’s argument that it has the unhindered authority to conduct warrantless searches at the border would improperly expand the border search doctrine, noting that DHS conducted its search after Kim had left the country in a facility 150 miles from the airport.
Even though the U.S. said it learned of the alleged plot through its interrogation of a Chinese national, the judge said there was no reason to believe Kim was involved in a criminal conspiracy at the time he crossed the border.
Deitch said Tuesday that the dismissal of this case was a victory for the Constitutional rights of U.S. citizens and visitors from abroad.
“Judge Berman Jackson’s ruling shows that the need to protect our country at the border is unquestionably important, but it does not mean that we forfeit our Constitutional rights when we cross that border,” he said.
Representatives for the Department of Justice declined to comment.
Kim is represented by David Deitch of Harris O’Brien St. Laurent & Chaudhry LLP and Sarah Koch of Ifrah Law.
The government is represented by Frederick Yette and Michael Friedman.
The case is USA v. Kim et al, case number 1:13-cr-00100, in U.S. District Court for the District of Columbia.
–Additional reporting by Margaret Harding. Editing by Emily Kokoll.